Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Boone County Public Library properly relied on KRS 61.810(1)(f) in conducting a closed session discussion at its September 17, 2009, regular meeting. We find that the Library properly relied on the cited exception and that its closed session discussion did not constitute a violation of KRS 61.810(1) to the extent it focused on the possible appointment of a recently terminated employee.
On November 17, 2009, James A. Duvall submitted a written complaint to Boone County Public Library Board of Trustees President Alice Ryle in which he alleged that the closed session discussion that followed his ten minute statement to the Board violated his right to a public hearing under KRS 61.810(1)(f). As a means of remedying the alleged violation, Mr. Duvall proposed that the Board grant him the hearing to which he was entitled.
In a response dated December 1, 2009, 1 the Library did not directly address Mr. Duvall's allegations but asserted that it had "agreed to grant the hearing despite the fact that [he] had already been terminated. " On January 19, 2010, Mr. Duvall initiated this appeal, focusing on the deficiencies in the Library's response and, in particular, the Library's failure to address the alleged violation.
In supplemental correspondence directed to this office, the Library explained that Mr. Duvall was dismissed on September 10, 2009, requested dispute resolution on the same day, and was granted "a hearing on his request for reinstatement" to be conducted on September 17, 2009. The Library described the meeting:
When it was time to discuss Mr. Duvall's dismissal and request for reinstatement, the Board went into closed session in accordance with KRS 61.810(f) for 'discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee. ' The only matter discussed or heard in the closed session was with respect to Mr. Duvall's re-appointment (he asked to be reinstated as an employee) or dismissal.
The Library relied on 94-OMD-122, recognizing that "unless there are local enactments providing for dismissal for cause after a hearing, the [city] employee has no right to notice and a hearing prior to his dismissal," and requested "a finding that because Mr. Duvall was an employee 'at will,' he was not entitled to a public hearing prior to his dismissal." Respectfully, this office is not empowered to make such a finding in the context of an open meetings appeal.
To begin, this is not a decision addressing an "at will" employee's right to a public hearing on possible discipline or dismissal. It is, instead, a decision addressing the propriety of a public agency's decision to conduct a closed session under authority of KRS 61.810(1)(f) to discuss the possible reappointment of a former employee. KRS 61.810(1)(f) authorizes public agencies to conduct closed sessions for:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested.
The exception expressly prohibits "discussion of general personnel matters in secret. "
At KRS 61.800, the General Assembly has declared that KRS 61.810(1)(f), along with the remaining twelve exceptions to the Open Meetings Act, must be "strictly construed" inasmuch as "the formation of public policy is public business and shall not be conducted in secret . . . ." In interpreting KRS 61.800 Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,"
E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990) cited in
Floyd County v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997) and that:
[T]he courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed executive or secret meetings.
Id. "[T]he exceptions to the open meetings laws," the courts have concluded, "are not to be used to shield the agency from unwarranted or unpleasant public input, interference or scrutiny." Id. at 924. The legislature and the courts have thus evinced a strong commitment to open government.
With specific reference to KRS 61.810(1)(f), the Attorney General has determined that "[a] public agency's authority to go into closed session relative to personnel matters is severely restricted," and that "[t]he only personnel matters that can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or discipline of personnel of that particular agency." 93-OMD-49, p. 3; OAG 90-125, p. 2. At page 3 of 97-OMD-110, we observed:
Prior to going into a closed session for one of the specific purposes authorized by KRS 61.810(1)(f), a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
97-OMD-110, p. 3; see also 97-OMD-124; 99-OMD-49; 99-OMD-94; 00-OMD-86; 06-OMD-257. Clearly then "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be disclosed in closed session under authority of KRS 61.810(1)(f) . . . ." 00-OMD-86, p. 83.
Consistent with the rule of strict construction codified at KRS 61.800, this office has narrowly read the terms appointment, discipline, and dismissal to insure that the words are given their ordinary, and not a strained or overly expansive, meaning.
Lynch v. Commonwealth, 902 S.W.2d 813, 814 (Ky. 1995). The Library indicates that the focus of its closed session discussion was "Mr. Duvall's reappointment (he asked to be reinstated as an employee) or dismissal." Although this office has determined that the terms "appointment" and "reappointment" are not synonymous when the latter term is used to describe renegotiation of a contract with a current agency employee, 2 here the terms are, for all practical purposes, synonymous insofar as Mr. Duvall was not a current employee, and the closed session discussion, perforce, focused on appointment. The Library's error, if any, was in characterizing the closed session as one focused on the possible reappointment of Mr. Duvall as, ostensibly, a current employee when, in fact, it should properly have been characterized as one focused on the possible appointment of Mr. Duvall as, in reality, a former employee. Discussions of the latter type clearly fall within the parameters of KRS 61.810(1)(f). See 96-OMD-97 (holding that in the absence of a contract between a public agency and an applicant, KRS 61.810(1)(f) authorized closed session discussions that might ultimately result in the appointment of the applicant to the position); OAG 91-144 (advisory opinion recognizing the propriety of closed session contract negotiations pertaining to possible appointment of a new agency employee).
Given the fact that Mr. Duvall's employment was terminated on September 10, 2009, and the meeting at which the challenged closed session was conducted occurred on September 17, 2009, the Library did not have the option to discipline or dismiss him. Any discussions of these topics that occurred in the closed session were therefore unauthorized. We find that the Library otherwise properly relied on KRS 61.810(1)(f) in conducting a closed session at its September 17, 2009, regular meeting. As a recently terminated employee, Mr. Duvall sought appointment to the Library and the closed session discussion that followed his statement to the Board did not violate the Open Meetings Act. Here, as in the open meetings decision upon which the Library relies, we decline the invitation to "decide whether the procedures relative to the termination of a [public] employee were properly interpreted and administered." 94-ORD-122, p. 4.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
James S. Duvall, M.A.Alice Ryle, PresidentSharon Schneider Elliston
Footnotes
Footnotes
1 The Library offers no explanation for its failure to respond to Mr. Duvall's appeal within three business days. This unexplained delay constituted a violation of KRS 61.846(1).
2 See e.g., 94-OMD-63.